9.16.2010

The concept of Custody-Visitation Scandal Cases was developed because of the frequency of extreme results in custody cases in which children are endangered, safe, protective mothers are denied any meaningful relationship with their children and the results appear to be the opposite of what the evidence and the well being of the children would require. The Battered Mothers Custody Conference was started in response to what we believed were too many of these tragic cases to be viewed as exceptions.

When we look at an individual case, it is hard to be sure the decision is wrong without a careful review of the record. In most cases mothers are pathologized or demonized in order to create the appearance of a justification for the extreme actions taken. When the bad decisions backfire in a way that demonstrates even to the courts that the wrong decision was made, the defenders of the courts like to believe these cases constitute the exceptions to the usual good job done by courts. There is now a large body of research about these cases that show there are too many cases with extreme results and flawed practices to be conveniently dismissed as exceptions. To illustrate the problem, I want to look at four of these extreme cases not because they are exceptions, but because they represent the kinds of mistakes the court system routinely makes and will continue to make until it changes practices that were developed at a time when no research was available and have proven to be detrimental to the children the courts are supposed to protect.

In one New Jersey case I have consulted on, the father has a long history of domestic violence and after the separation, the children disclosed sexual abuse. In this as in all the cases I will be discussing, the mother was unquestionably the primary attachment figure for the children. DYFS, the New Jersey child protective agency, investigated the allegations, but failed to confirm them. As a result, the father was given custody and as the protective mother continued to believe the father was dangerous, and challenge the professionals who failed to protect her children, she has been limited to supervised visitation.

In a well known Kansas case that I have discussed with the protective mother, the father has numerous convictions for domestic violence and other crimes and a poor relationship with the daughter. Despite this, the court gave custody to the father and imposed ever greater restrictions on the mother's access to the daughter. The mother has been active in exposing the broken court system and the court has wasted large amounts of time and money seeking to remove information from the Internet and silence the mother's concerns. The court has retaliated against the mother with reductions in visitation and a variety of sanctions.

In a California case, the mother left the father because of his abusiveness to the mother. Initially, the mother agreed to give the father unsupervised visitation, but as he continued his abuse and threatened to kill the baby, she sought to restrict him to supervised visitation. The judge decided she was a liar, awarded the father unsupervised visitation and threatened further action against the mother if the judge's belief she was lying was confirmed.

In a Maryland case the protective mother also sought to leave her abuser and when he made threats to hurt the children sought a protective order. Shortly before the mother appeared in court, she had sex with her husband. The judge, not understanding that it would not have been safe for the mother to refuse, assumed this meant the father could not possibly be dangerous and granted unsupervised visitation for the father.

One of the problems we have seen repeatedly is that when a court makes a mistake and fails to recognize or respond to danger caused by domestic violence, they will rarely admit to these mistakes. Instead we see the kind of retaliation and punitive measures harmful to children that was used in the New Jersey and Kansas cases. Nevertheless, the courts in California and Maryland would now admit they made the wrong decision. The case in California involved Katie Tagle as the protective mother. The father used the access given him by the judge to kill Baby Wyatt and then himself. Similarly, in Maryland, the mother was Dr. Amy Castillo and the father used the access provided by the judge to kill their three children and then himself.

The judges in California and Maryland are deeply disturbed by the outcome and genuinely sorry for their mistake. At the same time, they have defended their decisions saying they couldn't have known of the father's danger based upon the evidence in front of them. In one sense they are correct. The judges in these four cases all used the same outdated and discredited practices including the popular myth that women often make false allegations in order to gain an advantage in litigation. This contributes to the widespread inability of custody courts to recognize domestic violence and in turn led to the mistakes in these four cases and other cases endangering over 58,000 children every year.

If all or even a larger portion of the bad decisions led to an immediate and recognizable tragedy like the cases in California and Maryland, the needed reforms would have been adopted long ago and children controlled by custody courts would be protected. Most of the time, however, the cases are more like New Jersey and Kansas where the harm is better hidden and not as dramatic for the public. The children grow up without their primary attachment figure, often suffer private but horrible abuse and many become involved in a wide range of harmful behaviors in response to the direct and indirect abuse inflicted by their abusers. Most will never reach their potential as a result of the mistakes made in the custody courts.

Many communities have developed a practice in which child protective agencies team with the local domestic violence shelter. They cross-train staff and when a possible domestic violence case develops, child protective caseworkers consult with domestic violence advocates. This has resulted in child protective agencies being able to better recognize domestic violence and respond in ways that benefit the children. This should be considered best practices. DYFS recently adopted these best practices, but the New Jersey case was first investigated under the old flawed methods. The protective mother has asked DYFS and the court to take a fresh look at the original findings based upon better practices and the new research, but they adamantly refuse to consider the possibility that they made a mistake while using the old discredited practices. The judge has refused to consider any new evidence based on the up-to-date research and insists on proceeding with the case based on the unlikely conclusion that the mother's allegations are false.

As with many mistaken decisions, the mother has been pathologized by the unqualified professionals involved in the case. DYFS regularly uses the same mental health professionals who intuitively understand they are more likely to continue to be used by DYFS if they reach conclusions that support DYFS' findings. There is substantial evidence of confirmation bias in the work of the "neutral" professionals relied on by DYFS and the court. Since they "know" the mother's allegations are false and she continues to believe them, she must be "delusional" and therefore unfit for anything but supervised visitation. If she were delusional, it would stand to reason that this would present a problem in the rest of her life. These professionals have never stopped to consider how she can be successful professionally, academically and in all other phases of her life. Perhaps the DSM should include a new condition "delusional in the custody courts."

At this point, the concern is that because she continues to believe the father abused the children (based on substantial evidence) and so if she had unsupervised visitation would say negative things to the children. This is the beginning and the end of the discussion by the unqualified professionals relied on by the courts. The mother is the primary attachment figure to her children, so separating her from the children creates a higher risk of depression, low-self-esteem and suicide. Where is the research that establishes what harm would be caused to the children if she made these statements and they were false? There is no such research, it is just assumed by professionals unused to looking for research to justify their beliefs and recommendations. How can we know if the alleged harm of the mother making statements about the father is greater than the established harm of taking children away from their primary attachment figure?

The Kansas case is similar in that they have long since ignored or minimized the very real danger the abusive father poses to the child and instead concentrate all their attention on the supposed harm the mother can cause by continuing to believe the father is unsafe and posting information on the Internet that helps to expose a broken court system. Judges are ethically required to avoid actions that create the appearance of impropriety or conflict of interest. Although they phrase the demand to remove material as if it benefitted the child, in reality the real purpose is to hide the history of abuse of the father and the failure of the court to act in the child's best interests. Given the clear conflict of interest (they are seeking to remove materials that criticize the court), at the very least they would need convincing evidence that the mother's beliefs would create a long-term harm to the child. Similarly, the removal of the mother from the child's life, although she is the primary attachment figure creates a serious risk of harm to the child that the court has failed to address. Until the court can cite evidence or research to support its assumptions, the extreme actions present at least an appearance of impropriety. Ironically in both cases the courts put a high priority on placing the children with the parent it viewed as most likely to promote a relationship with the other parent, but when the abusive fathers sought to deny the children a meaningful relationship with the parent the children most need (the primary attachment figure), the same priority of keeping both parents in the children's lives was no longer paramount. This is a common mistake in the custody courts and is one example of the widespread gender bias faced by mothers. In fairness, court professionals are often oblivious to the gender biased approaches they use, but tend to get angry and retaliatory when it is pointed out to them.

I believe it is outrageous that the custody courts have not made children's safety the first priority. In the California and Maryland cases where there was evidence of a history of domestic violence and threats to kill the children, the court had time for only a brief hearing and refused to protect the children's safety resulting in their deaths at the hands of their fathers. At the same time, In the New Jersey and Kansas cases the courts seem to have unlimited time and resources to investigate the "danger" the children might hear their mothers' concern for their safety and well being.

Certainly there are mothers whose contact with the children needs to be limited. This would be in cases where there is a genuine safety risk such as a mother who is a drug addict, physically abuses the children or has a mental illness so severe as to make her unsafe to care of the children. In the absence of such safety issues it is virtually always wrong for courts to take the extreme action of barring unsupervised visitation. This is certainly true when it is done in the context of mothers trying to protect their children from fathers they believe are unsafe. The research establishes that because of the outdated and discredited practices court professionals routinely use, a large majority of findings denying the mothers' allegations are mistaken. Even when her allegations are untrue, it is unlikely the risk she will make negative comments about the father is more significant than the harm of taking a primary attachment figure out of the children's lives. In other words the harm to the children of these visitation restrictions is almost always greater than the harm the court thinks it is avoiding.

This was explained by Joan Zorza in her chapter in our book, DOMESTIC VIOLENCE ABUSE and CHILD CUSTODY, chapter 14 page 26. "Otherwise as shown in many parts of this book, courts often make mistakes that place the lives and safety of protective mothers and their children in jeopardy. In this context, it is important for courts that rule against alleged victims of DV to be open to the possibility that they made a mistake. Courts should be reluctant to take punitive or retaliatory actions against mothers who continue to believe their partners abused them." The courts in Kansas and New Jersey could have saved the children a lot of harm (and still can) by following this advice based on the most up-to-date research available.

The elephant in the room is the issue of corruption. Every time courts make decisions that appear to have no relationship to the evidence presented and make orders that cannot possibly benefit the children involved, they create the appearance of corruption. When courts seek to silence protective mothers and retaliate for criticism of the court or their abuser, they are promoting the belief that only corruption could explain these extreme and harmful decisions.

There are cases decided by corruption. The Judge Garson case in Brooklyn, New York is a prime example and his early release from jail after conviction further harmed the courts' reputation. More commonly mental health professionals and some attorneys have adopted beliefs and practices that favor abusers because that is where the money is. Nevertheless, I believe the research establishes that most of these bad decisions are caused by outdated and discredited practices that are deeply ingrained after all these years. In my career, I have seen many good people who I like and respect use these practices and come to extremely harmful conclusions. It is important, however that the legal system open its eyes to this problem, review the new research and stop acting defensively to the justified criticism.

In the summer of Watergate, John Dean testified that he told Nixon about a cancer on the presidency. His assumption was that the illegal and unethical practices were committed only by Nixon's aides. It turned out that Nixon himself was the cancer on the presidency and had to be removed. Today there is a cancer on the custody court system. Some children are dying and others have their lives ruined by unjustified and extreme decisions. Rita Smith, Executive Director of the National Coalition Against Domestic Violence wrote in her Afterward to our new book that once the book is published anyone who continues to use the old practices must be understood to be committing malpractice. The four cases discussed in this article were originally decided based upon the old discredited practices. It is too late to save the children in California and Maryland. This is what happens when inadequately trained professionals rely on the myth that women frequently make false allegations. We can still help the children in New Jersey and Kansas by taking a fresh look at the cases based on the up-to-date research now available. The court system is at a crossroads. It now has the research to reform its training and practices so that they can better protect all the children. I hope they will treat the research as a gift and not an attack and use it to remove the cancer on the court system. In doing so the court system can support my view that the mistaken decisions are not based on corruption.

Barry Goldstein is a nationally recognized domestic violence expert, speaker, writer and consultant. He is the co-editor with Mo Therese Hannah of DOMESTIC VIOLENCE, ABUSE and CHILD CUSTODY.